September 1, 2018 IN THE SUPREME COURT OF THE UNITED …

[Pages:20]September 1, 2018

IN THE SUPREME COURT OF THE UNITED STATES

----------------No. 2018-2019 ----------------Andrea Sommerville, Petitioner

vs. Olympus State University, Respondent ---------------------------------------------------------------------

On Writ of Certiorari to the Court of Appeals for the Fourteenth Circuit.

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ORDER OF THE COURT ON SUBMISSION

IT IS THEREFORE ORDERED that counsel appear before the Supreme Court to present oral argument on the following issues:

1. Whether Respondent's admissions policy, which gives preferential weight to male applicants, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

2. Whether Respondent violated Petitioner's right to freedom of expression under the First Amendment to the United States Constitution, as applied to the states through the Due Process Clause of the Fourteenth Amendment?

?AMCA acknowledges the assistance of the New York Law School Moot Court Board, which granted us permission to review one of its past cases. Vanessa Martson and Alexandra Rockoff were the authors of the New York Law School problem. The case problem we produced is the property of the American Moot Court Association (AMCA). It cannot be used without the permission of the AMCA.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT No. 01-76318

ANDREA SOMMERVILLE, Plaintiff-Appellant

vs.

OLYMPUS STATE UNIVERSITY, Defendant-Appellee

Appeal from the United States District Court for the Central District of Olympus

Before Adofina, Schriner-Briggs, and Maury, Circuit Judges.

OPINION BY Judge Adofina, with Judge Maury concurring:

I

Order This case arises on appeal from a decision by the United States District Court for the Central District of Olympus granting summary judgment in favor of the Defendant-Appellee, Olympus State University (hereinafter "OSU"), on the issues of equal protection and freedom of expression. Plaintiff-Appellant, Andrea Sommerville (hereinafter "Sommerville"), filed suit against Olympus State University School of Law (hereinafter the "Law School") claiming: (1) that the Law School's admissions policy that gives preferential weight to male applicants violated her right to equal protection of the law, and (2) that Olympus State University violated her First Amendment rights when it fired her for complaints she made about the Law School's admissions policy.1 The District Court found that the Law School's policy met constitutional scrutiny and that Sommerville's speech was not protected by the First Amendment because it occurred in the course of her official duties as a lecturer at OSU. We AFFIRM the judgment of the District Court.

II

(A)

Overview of the Facts

Plaintiff-Appellant Andrea Sommerville appeals the decision of the District Court for the Central District of Olympus affirming the constitutionality of Olympus State University School of Law's preferential-admissions policy (hereinafter "the Policy") and the decision of OSU to terminate her

1 Olympus State University and Olympus State University School of Law are the same legal entity. - 2 -

employment. No claims were brought under the Olympus State Constitution or any law of the State of Olympus. The District Court had jurisdiction under 28 U.S.C. ?? 1331, 1343(3). Our jurisdiction rests on 28 U.S.C. ? 1291. All parties have stipulated to the following facts. The parties further stipulate that no administrative or labor union remedies were required as prerequisites to bring this case. Issues not raised in this opinion are not properly before this Court. We review all questions de novo. The judgment of the District Court is AFFIRMED.

(B)

Equal Protection Facts

OSU is a selective public institution with a long and storied history as the flagship university of a ten-campus state system. OSU has 15,000 enrolled undergraduate students and 5,000 graduate students seeking professional/research/academic degrees in a variety of fields including the law.

The Law School is a fairly selective school with a reputation for producing a large number of lawyers who work in the public sector. The Law School is a Tier One law school that has consistently been ranked in the top 50 law schools in the United States and among the top five in its region of the country.2 Presently, the Law School is ranked in the low forties. The Law School is located downtown in the city of Knerr, which is the capital of the state of Olympus.3 The Law School is within walking distance of two federal court houses (both trial and appellate) and two federal office buildings that contain offices of the FBI, DOJ, ICE, DHS, and the EPA, as well as the Olympus State House, two state courthouses (both trial and appellate), and numerous state office buildings. It is a slightly longer walk or a short subway ride away from several municipal office buildings, including City Hall and a local courthouse.

The Law School has a full-time day and a full-time evening program. Both programs attract a fair number of applicants who are between the ages of 21 and 45 and who are either coming straight from college or who work for either the United States government, the state of Olympus, or the city of Knerr. 85% of evening school applicants have public or private sector work experience and 25% already have a graduate degree. On average, of those accepted to the night program, 80% have public or private sector work experience and 30%?40% have a graduate degree.

The Law School has a student body of 750 students. Its average incoming class is 275 students (100 in the night program and 175 in the day program). On average, of these 275 students, 25 drop out or transfer after the first year. Ten drop out of the night school and 15 from the day program. To obtain a yield of 275 students, the Law School admits an average of 1,000 students. There are 270 students in the evening program and 480 in the day program. In the evening program, 175 (65%) are women and 95 (35%) are men. In the day program, 288 (60%) are women and 192 (40%) are men. The Law School's closest competitor, in terms of geography and rank, is Apollo State University Law School. Apollo State University Law School also draws a sizeable number of professional students and has a student body ratio that is about 55% women to 45% men.

2 Law schools are divided into four tiers. Each tier contains fifty schools. 3 Of the five law schools in Olympus, Olympus State University School of Law is ranked the highest. Apollo State University Law School is the one other law school in Knerr. It is the second ranked law school in the state and is presently ranked at the top of the Second Tier of law schools.

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On average, the Law School receives about 3,500 applications each year. Application data show there was no significant drop in the overall number of applications to the Law School from 2000 to 2010. Of the typical 3,500 applicants, 2,000 were women and 1,500 were men. Of the 1,000 accepted, 600 were women and 400 were men. Of the 275 who accept and enroll, 170 (62%) were women and 105 (38%) were men. Of the 250 who graduate, 137 (55%) were women and 113 (45%) were men. This women-to-men ratio is a long-term trend that extends back to the start of the 21st century. In fact, in the years since 2000, the percentage of females who comprise the incoming student body has never dipped below 60%, and it has been as high as 70%. In 2000, for example, 550 (55%) of those admitted were women. This exceeded the 49.4% national average at that time. The percentage of women enrolled at the Law School rose to 60% by 2005 and has remained in the 60% range ever since--reaching a high of 70% in 2008 before slipping back into the 60%-65% range between 2011 and 2016. In contrast, the national percentage of women enrolled in law schools in 2005 and 2008 was 47.5% and 47.3% respectively. Starting in 2011, there has been a 40% decline in law school applications nationwide. This decline included both men and women. As a result, it became easier to get into law school for all applicants--men and women alike.

Nationally, there is a trend that more women apply to and attend law school in the United States. In 2016, 50.3% of the total number of law students in the United States were women. The same year, 51.4% of first-year law students were women and 48.6% were men. From 2000 to 2001, the percentage of women enrolled in American law schools was 49.4%, while 50.6% were men. In 1985, 60% of enrolled law students in the United States were men. In 1976, that figure was 70%. In 1969, it exceeded 90%.4 Presently, of the nation's 200 accredited law schools, 85 have student bodies that are a majority female. Of these 85, 15 have 100 more women than men enrolled in their programs. While 115 have student bodies that are a majority male, few have student bodies of greater than 55% men and none have 100 more men than women students.

While the Law School's gender imbalance is duplicated at many other law schools around the nation, the Law School's most recent class that was admitted for Fall 2017 had a ratio of 62% women to 38% men, which is higher than average and inconsistent with most Tier One law schools.5 This is especially true of the nation's top twenty-five law schools, most of whose incoming classes are split fairly evenly6 between men and women.7 Of the law schools ranked 26 to 40, ten of the incoming classes are fairly evenly split while five of the incoming classes have ratios of 55% women to 45% men. None have classes that have more than 55% of either gender.

4 See American Bar Association, 2016. The trend toward more women applying to and attending law school mirrors a national trend that began at the collegiate level. With respect to undergraduates, only 43% who enter college are men. In terms of graduation rates, for every 100 women who earn a college degree, only 73 men will do so. Further, 83% of all U.S. colleges and universities have more female than male students. See U.S. Department of Education. 5 Historically, the Supreme Court has used the terms sex and gender interchangeably. To reflect the evolution of the understanding of these concepts we will use the term gender in this opinion. 6 Fairly evenly split means women to men ratio of between 52%-48% and 50%-50%. Even if a school is fairly evenly split between women and men, each one still had a majority of one gender. 7 One notable exception is the University of California at Berkeley, which, as of 2017, had in total 563 women enrolled and 374 men enrolled in its three classes (2018/2019/2020).

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With respect to law schools ranked 41 to 50: two, including the Law School, have more than 60% women, one has more than 60% men, two have ratios of 55% women to 45% men, and five are evenly split. These data show the situation in which the Law School finds itself. Most schools in the same tier are able to attract more male students.

The Law School has argued that achieving gender balance is necessary to retain its status as a Tier One law school. The Law School is especially concerned that if its ratio of women to men continues to widen, it will negatively affect its law school ranking. This concern reflects three facts. First, most law students today view an equitable balance of men and women as crucial to a well-rounded academic experience. Second, once a school becomes decidedly one-sided in terms of gender, fewer students, male or female, find it an attractive option. Third, the ratio of men to women is a factor weighed in ranking law schools.8 Thus, administrators at the Law School worry that top applicants, men and women alike, will question the benefits of attending a predominantly female institution and will cease to apply to and/or attend the Law School.

The Law School takes the position that having a proper gender balance is critically important to high quality education. To wit, it submits that men and women bring different experiences, perspectives, and analytical approaches to the classroom. Women and men also have different world views based on the very different histories each has experienced. An equitable ratio of women and men, thus, helps produce diversity. This, in turn, creates cross-gender understanding and helps break down stereotypes. Consequently, the discussion, the analysis, and the learning that take place in a diverse classroom have a positive impact on a student's academic experience.

Admissions officers at the Law School have devoted considerable time and resources trying to bridge this gap. These efforts include: increasing its recruitment budget by 20%; targeting talented male students through the Law School Admissions Council's (LSAC) Candidate Referral Service; visiting every undergraduate campus within 500 miles of the Law School twice a year; offering 80% of all males who apply fee waivers; hosting application workshops for males only; offering male applicants who sign up for tours of the Law School free tickets to athletic events or gift cards; creating several diversity scholarships for male applicants, and offering baseball caps to the first 500 male students who apply. In addition, the Law School created the Preparation Program for Male College Students. This program is funded by a $300,000 diversity grant award from the LSAC and is available to male students regardless of race or ethnicity. The program was designed to address gender imbalance by giving participants faculty mentoring, assistance with preparing for the Law School Admission Test, guidance for interviews, and helping with personal statements for law school applications. Despite these efforts, the gap persists.

On March 26, 2013, the Law School's Dean, Chester Comerford, directed the Dean of Admissions, Michael Spybee, and the Assistant Dean of Admissions, Anne Dudia, to begin the Policy of affirmative action designed to help reduce the gender gap and to increase diversity overall at the Law School. The Law School gives each applicant an individualized review and gives consideration to a range of attributes that would add to the overall diversity of each entering class,

8 Other factors include: bar passage rate, GPA, LSAT scores, affordability, quality of facilities, faculty and administration, the degree to which alumni support the law school, journals and practicums available, quality of and opportunities available to participate in trial and appellate advocacy programs, externships and clerkships obtained by students/graduates, and the percentage of graduates who are employed.

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even beyond gender. The Law School admits that in some instances male applicants are admitted with lower grades and LSAT scores than their female counterparts, but it does not employ any fixed numerical quota for men or women. The Law School considers letters of recommendation, quality of their undergraduate curriculum, life experiences, including post-graduate degrees/experiences, extracurricular involvement, and quality of the personal statement. The Law School has stated a preference to have as much balance between men and women as possible.

Sommerville is a 30-year old white female who has no children and has never been married. She earned a Bachelor's in Religious Studies from Kedesh College and a Master's in Women's Studies from Apollo State University. Sommerville taught at OSU for five years as a part-time lecturer in the Department of Women's, Gender and Sexuality Studies. Sommerville, a popular figure in the classroom, has been frequently nominated as one of the best and most prominent faculty members on campus. In 2015, she was awarded the S. Borden Jeanne Award for Teaching Excellence.

In January 2017, Sommerville applied to the Law School for acceptance into the 2017 fall class. Generally, applicants who apply in the winter are typically less likely to be admitted than fall applicants. OSU was the only law school to which Sommerville has ever applied. Sommerville indicated a preference for the evening program so she could continue to work part time. Most students in the evening program work full or part time.

On March 17, 2017, Sommerville was notified that her application had been rejected. Sommerville's fall 2016 LSAT score of 159 put her in the 77th percentile nationally,9 her 3.5 undergraduate GPA placed her in the top 15% of her graduating class at Kedesh College, and her 3.75 graduate GPA placed her in the top 25% of her graduating class at Apollo State University.10 At Kedesh College, Sommerville volunteered as a tutor and participated in undergraduate moot court through the American Moot Court Association. Sommerville grew up in an upper middleclass neighborhood in southern Olympus, attended public schools throughout her life, and worked part time in a local bookstore all throughout high school. Using the Freedom of Information Act to get data from the school, Sommerville discovered that while every female who was accepted met or exceeded her portfolio, many of the male students who were accepted were not equal in GPA and LSAT scores. In fact, male students were admitted with undergraduate GPAs as low as 3.0 and with LSAT scores as low as 150--but not necessarily in combination with each other.

The Law School does not deny any of the aforementioned. The Law School contended in the District Court, however, that the male students in question all brought other soft variables and experiences, in addition to gender, which allowed them to add to the diversity of the incoming class in ways in which Sommerville did not. Some of the admitted male students, for example, came from impoverished backgrounds; had traveled broadly and experienced other cultures; were single fathers; had started their own businesses; had been student-athletes in college; or brought

9 The Law School's 25th/median/75th percentile LSAT and GPA scores for the class that matriculated in 2017 when Somerville applied are as follows: 156/161/164 and 3.31/3.6/3.75. These figures indicate the level of the Law School's selectivity.

10 Graduate school GPAs are typically higher than undergraduate GPAs. While law schools do not include graduate school GPAs into the cumulative GPA used for admissions purposes, they do consider how well an applicant did in their graduate program when evaluating their application.

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unique artistic talents. Thus, while gender was a factor in their admission (and by extension in Sommerville's rejection) the Law School argues it was not the deciding factor. Even though the Policy requires consideration of a number of factors in the admissions process, the Law School concedes that had Sommerville been a male she would have been accepted.

(C)

Freedom of Expression Facts

Sommerville is a former part-time lecturer in the Department of Women's, Gender and Sexuality Studies at OSU. She worked in that capacity from August 2012 to May 2017. Sommerville was hired by the Department Chair, Professor Bobbi Bronner. Professor Bronner had been Sommerville's professor at Kedesh College. In fact, it was a class with Professor Bronner that had first piqued Sommerville's interest in women's issues. Professor Bronner encouraged Sommerville to attend graduate school and encouraged Sommerville to apply to law school. At Professor Bronner's initiative, the Department of Women's, Gender and Sexuality Studies created a class on gender and the law for Sommerville to teach.

Sommerville taught two courses per term. She was rewarded with extra pay if she served as a faculty advisor to student groups. She was also encouraged to present papers at conferences and at other academic settings, and to publish her work in academic or commercial journals and on other public platforms such as newspapers and online professional websites. During her employment, Sommerville was eligible for travel support from OSU, as well as for a small stipend to cover costs related to research. The faculty at OSU is not unionized.

Sommerville was thrilled to work in gender studies and excited to work at an institution that has long expressed openness to new ideas and a commitment to free expression, especially in the classroom. For example, OSU had posted a statement on its website announcing its opposition to political correctness and censorship and pledged to ensure that its students not be sheltered from the reality that in life one meets people with whom one disagrees. The statement is posted online and found in the handbooks given to students and faculty, and reads as follows:

We are committed to delivering the highest quality of education to prepare students for their post-graduate lives. In order to best prepare our students, we do not condone shielding students from controversial ideas and perspectives. Students will not be warned about speakers whose remarks may be controversial, nor will faculty be required to issue trigger warnings before exposing students to class materials. As a public university, it is our role and mission to foster the free exchange of ideas.

In the spring of 2017, Sommerville taught a small seminar on gender and the law and a large introductory survey class on gender issues. In both courses, Sommerville scheduled classes on subjects including women and professional careers, affirmative action, women and the law, and how and why women have been traditionally disadvantaged. At the outset of the term, Professor Bronner informed Sommerville that although OSU was facing budget cuts that would result in some part-time faculty not returning for the following term, her preference was to bring Sommerville back, especially if Sommerville agreed to keep teaching at least one section of the

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survey class each semester.11 Sommerville agreed.

After Sommerville's application to the Law School was rejected, she began to complain in class about the Policy. Specifically, Sommerville complained that her right to equal treatment had been violated. At times she called on male students to defend the Law School's actions and the Policy. Sommerville was critical of women in class who either did not agree with her or were not actively trying to end the Policy. As the term progressed, Sommerville's attitude became more vociferous, and she began to complain in settings outside her classroom. For example, Sommerville voiced her complaints in the following settings:

? At lunch with other faculty members both on and off campus; ? At two academic conferences where she presented papers. The first was at a

forum on gender and the law held on OSU's campus and the other was at a professional association meeting held out of state that was funded by OSU travel support. These papers identified Sommerville as a lecturer at OSU12; and ? At two political rallies--one held off campus and the other on campus. Sommerville spoke at a rally sponsored by two organizations: Nasty Women Against Discrimination (NWAD) and Women for True Equality (WTE).13 NWAD and WTE held the event off-campus for women to come and share their stories of how they had been discriminated against by men. Sommerville was introduced at the event by WTE founder Sydney Kirsch as "a victim of OSU's male-first policy." Sommerville spoke about the evils of the Policy and shared her personal story. Neither Sommerville nor anyone else noted that she was employed at OSU. The second rally, known as Unity Fest was sponsored by the OSU Student Government and was held on campus. Unity Fest is discussed in greater detail below.

In the 2016?2017 academic year, there was a surge of hate crimes on OSU's campus. First, two female students who wore head scarfs were assaulted by two masked men while walking back to their dormitory from the library. The assailants reportedly told the students to "go back to their own country" and called them "terrorists." Second, misogynist slogans were spray painted outside the building where the Department of Women's, Gender and Sexuality Studies is located. Third, anti-Semitic slogans were spray painted outside the campus chapter of Hillel. Fourth, two men were caught on surveillance video hanging a noose inside the Student Union, just outside the Office for Diversity. In addition, flyers bearing the slogan "We Will Not Be Replaced" were distributed on campus by males, several of whom were enrolled at OSU. Other flyers pledged to return "Jews to the Oven, Blacks to Slavery, and Women to the Bedroom and Kitchen."

The aforementioned incidents prompted the OSU student government to organize a campus event called Unity Fest to promote campus-wide unity regardless of nationality, religion, race, gender

11 The survey class had more students and thus more grading than the seminars. Because Sommerville was not tenured or tenure-track, she did not qualify for a grading assistant. 12 While presenting at conferences was not a requirement of her employment, OSU encouraged its lecturers to participate in such events. 13 WTE, founded by one of Sommerville's former students, Sydney Kirsch, did not allow men to join.

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